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The Star spoke with prominent defence lawyers to get their thoughts on how the Ghomeshi trial is progressing.

Daniel Brown

Looking back at the first week, how has the Crown been doing?

“It isn’t a matter of the Crown attorney being unprepared, he was just unaware. Without those emails, this case may appear very different. The emails undermined the evidence the complainants gave in court and may ultimately hurt the prosecutor’s case.”

How about the defence?

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“It’s actually quite sad because most people don’t preserve innocuous emails and photographs from 15 years ago. This particular accused is fortunate that he has those things to rely on, but there are many other accused out there who face historic complaints and don’t have the same luck.”

Do you think Jian Ghomeshi will testify?

“I think he’s likely to testify . . . in most cases that involve ‘he said, she said’ we would expect the defendant to take the stand and explain the context of the allegations.”

Alison Craig

Looking back at the first week, how has the Crown been doing?

“To be honest, I can’t really think of anything that went right for the Crown. Significant holes were punched, at least it seems to me, not only in the credibility but also the reliability of the evidence of both complainants and that’s hugely significant in a case like this.”

How about the defence?

“I think it went as well as could have been hoped. It’s definitely preparation that makes the difference. Sometimes in these kinds of cases you need to do a lot of digging… and if you’re well prepared things tend to go your way.”

What are your thoughts on the public reaction to the trial?

“People don’t seem to understand it’s not the fact that the women had contact with him (Ghomeshi) afterwards. It’s the fact that they appear to have lied about having contact with him, in court. You can’t enter a conviction based on the evidence of someone who has lied, blatantly, under

Jeff Hershberg

Looking back at the first week how has the defence been doing?

“Pretty much everything that they were hoping for they seem to have gotten.”

“With the first complainant, whether the extent of the emails was known to the Crown is unclear, but the way the email came out made it appear as though the complainant was not forthcoming with all the relevant information.”

What does each side need to do next week?

“What Ms. Henein has to prepare herself for is a more prepared witness than witness number one. Complainant three may have listened, and I’d be surprised if she hadn’t followed what has gone on in the last week. I’d be super surprised if she hasn’t gone through every single email she has to see if there’s anything there.”

“If the Crown didn’t know, and I’d be surprised if they did, some of the things that have come out in evidence during cross examination, he’s going to be racking his brain with police to figure out what else they don’t know and what they should know.”

How does a judge assess the credibility of a sexual assault complainant?

“In a case like this it’s really about what the evidence is. Witness number one, before cross examination, probably would have been believed in the way she testified. But then as cross-examination goes on and holes are poked in stories and if someone keeps things from the Crown or police or lies that then shows a lack of truth and affects the credibility.”

Calvin Barry

Looking back at the first week, how has the Crown been doing?

“Right now you don’t really see the formidable cross-examining skills of the seasoned Crown . . . he’s no pushover, he knows his stuff.”

How about the defence?

“I don’t think she’s being unfair. She’s being balanced and in a case like this you don’t want to come out of the starting gate over the top because the judge could almost draw inference that these people are being re-traumatized.”

Do you think Jian Ghomeshi will testify?

“I think he will testify because he has allegations to . . . the case is far from over, the defence is having their opportunity to score points, but the Crown will soon have theirs if and when Ghomeshi decides to testify.”

Michael Spratt

Looking back at the first week, how has the Crown been doing?

“Crowns never win or lose. They’re supposed to present the evidence in a fair and full way. The Crown has done a good job of that, but . . . in retrospect the Crown may be thinking they should have called an expert witness to testify to some aspects of disclosure and the psychological state of the victim.”

What does each side need to do next week?

“The Crown’s presenting of a case is sort of like steering an ocean liner where it takes a long time to change course . . . I don’t think there’s much room for the Crown to deviate from what they’ve done. The evidence has already been disclosed, the witness list drawn up and at this late stage any major deviations by the Crown that would delay the trial could jeopardize the prosecution.”

Kim Schofield

What are your thoughts on the trial?

“I’m surprised that they’re prosecuting this thing. You have a man whose life is ruined, who may have questionable sexual practices and may be a horrible character, but that’s not a criminal act.”

“The violence that’s alleged is probably true, but as for if it’s non-consensual, he certainly would think it is because these women seem to encourage it.”

“It looks to me like these acts are purely consensual, and I’m shocked that the Crown has witnesses that they call repeatedly and they have these surprise emails, what is that all about? One would expect that if the complainants were being forthright, they would tell the Crown.”

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